It is not essential for the disposition of this case to determine whether or not section 2753, Ind. T. Ann. St. 1899 (Mansf. Dig. § 4073; Sand. H. Dig. § 4369; Gantt's Dig. sec; 3763; Kirby's Dig. § 4604), which provides that:
"In cases of dismissal for want of prosecution, confession, or on the verdict of a jury, the judgment shall be rendered and entered upon the docket forthwith. In all other cases the same shall be done within three days after the cause is submitted to the justice for final decision."
— is mandatory. In case it were mandatory, the failure of the *Page 143 justice to render and enter judgment within three days would not oust him of jurisdiction of the subject-matter, but merely of the parties. It has been repeatedly held by the Supreme Court of Arkansas that a party by appealing made himself a party to the proceeding, and could not thereafter object to the jurisdiction of the court over his person. McKee v. Murphy,1 Ark. 58; Smith v. Stinnett, 1 Ark. 497; Ball v. Kuykendall,2 Ark. 195; Sykes v. Laferty, 25 Ark. 99; K. C., S. M. R. Co.v. Summers, 45 Ark. 296.
Conceding then that the judgment, not having been rendered and entered within three days after the submission of the case to the United States commissioner, who was ex officio a justice of the peace under the statutes of Arkansas extended to and put in force in the Indian Territory (Act Cong. May 2, 1890, c. 186, 26 Stat. 81; Ind. T. Ann. St. 1899, p. 13, § 39; Act Cong. March 1, 1895, c. 145, 28 Stat. 693; Ind. T. Ann. St. 1899, p. 17, § 48), and who had jurisdiction of the subject-matter, was void, jurisdiction over the parties having been lost; yet when the defendant appeared and filed an affidavit for appeal to the United States Court for the Northern District of the Indian Territory at Vinita, and superseded the judgment, it thereby entered its appearance and made itself a party to the proceeding, and cannot thereafter be heard to complain of the judgment rendered in the United States Court at Vinita.
Section 2744, Ind. T. Ann. St. 1899 (Mansf. Dig. § 4064; Sand. H. Dig. § 4360; Gantt's Dig. § 3754), provides:
"Whenever a justice shall be satisfied that a jury sworn in a cause before him, after having been out a reasonable time, cannot agree on their verdict, he may discharge them, and shall issue immediately a new summons for another to appear, at a time therein fixed, not more than three days distant, unless the parties consent that the justice may render judgment upon the evidence already before him, which, in such case, he may do; or, unless they consent that the new trial, upon a new hearing of the evidence to be adduced by the parties shall be by the justice." *Page 144
In the case of Manufacturing Co. v. Donahoe, 49 Ark. 320, 5 S.W. 342, the court said:
"* * * It is clear that the justice did not lose jurisdiction of the subject-matter of the action by the continuance; and, as to the jurisdiction of the person, this court has repeatedly held that when the defendant had appeared before a justice of the peace, had the benefit of a trial on the merits, and an appeal had been taken to the circuit court, he could not then be heard to say that the justice had no jurisdiction of his person. No question arises here as to the effect of the continuance by agreement. When the defendant appeared and went into trial before the justice on the 26th, she thereby gave him jurisdiction of her person" — citing Sykes v. Laferty,25 Ark. 99; McKee v. Murphy, 1 Ark. 55; Townsend v. Timmons,44 Ark. 482. See, also, Hodges v. Frazier, 31 Ark. 60.
In addition, the court found that the attorneys of both plaintiff and defendant from time to time requested the commissioner to render and enter his judgment, and that this amounted to a waiver of any irregularity in entering the judgment. This may be construed as tantamount to an implied agreement to the entering of the judgment beyond the three days prescribed by the statute.
There appearing no reversible error in the record, the judgment of the lower court is affirmed.
All the Justices concur. *Page 145